Smith v Secretary of State for Communities and Local Government

This is a claim under s.288 of the Town and Country Planning Act 1990 to quash a decision of an inspector appointed by the Secretary of State for Communities and Local Government, which dismissed his appeal against the refusal of planning permission by the London Borough of Bexley (“the council”). The proposed development is the conversion of a building to provide two four bed semi-detached dwellings at Manor Freehold Farm in Sidcup, Kent.

In broad outline, the claim involves the planning inspector’s approach to the visual impacts of the proposed development and its effects on the openness of the Green Belt.

The background, in brief, is this. The proposed development is in the Metropolitan Green Belt. The site comprises a substantial single storey shed and an extensive area of hard standing. The building is arranged as four self-contained units. Over the years they have been used for various commercial purposes. The hard standing is used for parking and the storage of vehicles.

Early last year, the claimant applied to the council for planning permission for the conversion of the building to form two residential dwellings. The proposal did not involve any extension to the building, or the construction of any other building. There were to be fences round the gardens of the proposed dwellings, bin storage and parking for vehicles. The existing area of hard standing was to be broken up and, in the main, returned to grass.

On 20th March 2016, the council refused permission. There were a number of reasons given, but the reason relevant to this application was that the proposal was for inappropriate development in the Green Belt. In relation to that, the officer's report to the council's planning committee had said that the proposed use for residential purposes would continue the sprawl of urbanisation at a point where the urban edge of Sidcup defined the outer edge of the council's district.

The claimant appealed and the appeal proceeded by way of written representations. The Secretary of State appointed an inspector, Mr Michael Boniface, to determine the appeal. He conducted a site visit.

In his decision letter of 11th January 2017, the inspector identified the issues and considered whether the proposed development was inappropriate because of its effect on openness of the Green Belt. The inspector referred to the National Planning Policy Framework ("the NPPF" or “Framework”). He said that under para.90 of the NPFF new buildings were to be regarded as inappropriate development in the Green Belt subject to the express exceptions outlined in paras.89 and 90.

In his decision letter, the inspector then said this:

Under the heading "Other Considerations", the inspector said:

The inspector concluded that the proposed development would constitute inappropriate development in the Green Belt and would harm openness. Other considerations did not outweigh that harm. Accordingly, he dismissed the appeal.

The NPPF addresses Green Belt matters at para.79 to 92. Relevant to this appeal are the following paragraphs:

There have been a number of cases relevant to the interpretation of para.90 of the NPPF. First there is Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government & Ors [2013] EWHC 2643 (Admin), relevant to the correct approach to the proviso in para.90, that one has to start from the premise that the developments in the bullet points are appropriate. That was a case involving mineral extraction. In other words, it concerned the first bullet point in para.90. Ouseley J held as a result of the proviso that such exploration or extraction could be appropriate:

On appeal - Europa Oil and Gas Ltd v Secretary of State for Communities And Local Government & Ors [2014] EWCA Civ 825 - Richards LJ, with whom Moore-Bick and Kitchin JJ agreed, said:

Secondly, Turner v Secretary of State for Communities and Local Government & Anor [2016] EWCA Civ 466 establishes that the concept of openness of the Green Belt is open textured and has a visual dimension. The proposal there involved a bungalow to replace a mobile home, a collection of commercial vehicles and associated works. The relevant paragraph of the NPPF was para.89 but a key issue was the concept of openness of the Green Belt. The inspector had found that no valid comparison could reasonably have been made between the volume of removable chattels such as caravans and vehicles on the one hand and permanent development such as a dwelling on the other:

In the course of his judgment, with which Arden LJ and Floyd LJ agreed, Sales LJ said this:

Later in his judgment, Sales LJ said that the openness of the Green Belt had a spatial aspect as well as a visual aspect, and the absence of visual intrusion did not, in itself, mean that there was no impact on the openness of the Green Belt as the result of the location of a new or materially larger building. However, it did not follow that openness of the Green Belt had no visual dimension: para. 25.

On the facts of the case, he found that there was no error of approach by the inspector. In the assessment of the issue, the inspector had made a legitimate comparison of the existing position regarding the use of the site with the proposed redevelopment. That was a matter of evaluative assessment for him. His assessment could not be said to be irrational and it was rational and legitimate for him to assess, on the facts of the case, that there was a difference between the permanent physical structure in the form of the proposed bungalow, and the shifting body of lorries associated with the current operation of the site. The inspector had been entitled to take into account the difference in visual intrusion on the openness of the Green Belt: para 27.

In the course of his judgment, Sales LJ disapproved of the propositions set out by Green J in Timmins & Anor v Gedling Borough Council [2014] EWHC 654 (Admin) at para.78; namely, that there was a clear conceptual distinction between openness and visual impact and therefore it was wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact. Sales LJ also commented on Sullivan J's judgment in R (on the application of) Heath and Hampstead Society v Camden [2007] EWHC 977 (Admin). Sales LJ quoted a passage in Sullivan J’s judgment, that the “loss of openness (i.e. unbuilt on land) within the Green Belt, or Metropolitan open land, is itself harmful to the underlying policy objective”. Sales LJ said that since the concept of openness of the Greenbelt had a spatial or physical aspect, as well as a visual aspect, Sullivan J's statement was true in the context of the NPPF as well “provided it is not taken to mean that openness is only concerned with the spatial issue": para. 23.

In the course of the argument, I was taken to an obiter comment of Lindblom LJ in R (on the Application of) Lee Valley Regional Park Authority v Epping Forest District Council & Anor (Rev 1) [2016] EWCA Civ 404. There, Lindblom LJ, with whom Underhill LJ and Treacy LJ agreed, said:

As I have explained, Sales LJ disapproved Timmins (supra) in Turner and explained Sullivan J's judgment in the Heath and Hampstead society (supra). The obiter comment by Lindblom LJ in Lee Valley (supra) needs to be read in that context. Moreover, as Holgate J stated in Goodman Logistics Developments (UK) Ltd v Secretary of State for Communities and Local Government & Anor [2017] EWHC 947 (Admin), Turner is binding on this court.

Indeed,the third relevant point to interpretation of para.90 of the Framework Goodman Logistics is contained at para.87, where Holgate J held that nothing justified the argument advanced in that case by the Secretary of State, that on a true interpretation of Green Belt policy the visual impact of the development could not be taken into account as reducing the spatial or physical harm that a development would cause to the openness of the Green Belt.

The final authority for brief mention is a decision by Hickinbottom J, as he then was, in R (on the application of) Samuel Smith Old Brewery (Tadcaster) & Ors, v Darrington Quarries Ltd [2017] EWHC 442 (Admin). That was a case concerned with an officer's report to a planning committee. In the course of his judgment, Hickinbottom J rejected the submission that both para.89 and para.90 of the framework start from the same general proposition, that development in the Green Belt is inappropriate; the relevant policy distinction was not between those paragraphs but rather between, on the one hand, proposed development that was in principle inappropriate and, on the other hand, proposed development that in principle was not inappropriate, para.84. Like Holgate J, in the Goodman Logistics (supra) case, Hickinbottom J accepted the ruling in Turner, commenting that Sales LJ's approach in there was entirely consistent with that of Ouseley J and the Court of Appeal in the Europa Oil ((supra) case.

In advancing the claimant's case, Mr Turney contended that the inspector had adopted the wrong approach to para.90 of the NPPF and should probably have concluded that the proposal was not inappropriate. If he had done so, he submitted, it was highly likely that the appeal would have been allowed.

Turning to details of para.90, Mr Turney submitted that, since this was a development proposal for the reuse of a building of a permanent and substantial construction as described in the fourth bullet point of that paragraph, it was not inappropriate a development if it preserved the openness of the Green Belt and did not conflict with Green Belt purposes. Yet, beginning at para.5 of the decision letter, the inspector appeared to have taken the wrong starting point as being that the proposal was, in principle, inappropriate unless it fell within the exception. Having adopted that incorrect starting point, Mr Turney contended, the inspector was in error in both his approach to openness and to the conflict with the purposes of the Green Belt. While this starting point is not fatal to the inspector's decision it had, to use the language of Richard LJ in Europa Oil (supra), put him in the wrong mind-set in considering the issue before him.

As regards openness, Mr Turney submitted that the inspector was in error in finding that the proposal would fail to preserve openness. Firstly, the inspector had never explained what he regarded as openness. Secondly, he misinterpreted its meaning. Drawing on, amongst other authorities, Lee Valley (supra), Mr Turney submitted that openness in this context meant freedom from buildings, so it was the impact of the built form which was crucial. The factors the inspector relied on at para.7 of his decision letter could not rationally be regarded as reducing openness, since they did not relate to built development: in particular, they would not increase the amount of land that was built on when this was to be a converted building with no extension. The impact of the fences, the bin store and so on was a visual impact but it did not impact on openness.

Mr Turney accepted that visual impact was relevant to the assessment of openness. He contended, however, that it did not follow that visual impact from something which did not introduce a new built form was relevant to the assessment of its impact on openness. Mr Turney highlighted that the items that the inspector had identified in para.7 of his decision letter did not require express planning permission. In any event, they could well be subject to control by planning condition. In sum, they were not matters relevant to assessing the impact of the proposal on openness.

Secondly, Mr Turney contended that since consideration of para.90 has to start from the premise that development identified there is appropriate, matters such as those considered by the inspector did not take the development outside the scope of appropriate development in the Green Belt. This was the Europa Oil (supra) principle. In Mr Turney's submission, the inspector failed to consider the fact that the features that he identified in para.7 of his decision letter were an inevitable consequence of the change of use, identified as one of the prima facie appropriate changes of use in NPPF para.90. Since these features were inherent in the change of use, they had to be regarded as acceptable and could not be subject to the inspector's assessment of openness. It was wrong for the inspector not to take this into account.

As regards the inspector's approach to the conflict of the proposed development with the purposes of the Green Belt, in particular the reference in para.8 of the decision letter to the unrestricted "urban sprawl", Mr Turney submitted that the proposal did not involve any new build. Consequently, the proposed development would not contribute to the "sprawl" of built up areas. Mr Turney returned to his point that the inspector's approach followed from the wrong starting point, that the conversion of buildings was inappropriate development which had to be justified.

The starting point in considering these submissions must be Sales LJ's judgment of Turner(supra), that openness is an open textured concept and that various factors will bear on it. With no disrespect to the submissions, it seemed to me that the straightforward and easily understandable approach of Sales LJ to openness in para.14 of the Turner judgment was being infected to some extent by the legalism deprecated by both by the Supreme Court ( see Lord Carnwath in Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865 para.25), and by the Court of Appeal (see Lindblom LJ in Barwood Strategic Land II LLP v East Staffordshire Borough Council & Anor [2017] EWCA Civ 893 at para.50, and in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 at para.41).

Thus, I cannot accept that in the light of Sales LJ cogent analysis the concept of openness is confined to the visual impact arising from buildings. Indeed, that is clear from Turner(supra) itself, when the impact on existing openness of the vehicles and so on around the site were taken into account. Even if the visual impacts the inspector identified in this case could not be said to be part of the development, that did not mean that they were to be ignored. The NPPF does not require an inspector to disaggregate the impacts of non-development features from the impacts of proposed development more generally.

Paragraph 90 of the Framework at the fourth bullet point contemplates the re-use of buildings. However, it is not in inherent in the reuse of this building, even as a residential property, that that should necessarily come with the fences, the storage bin and so on, contemplated by the present proposal. I accept that some of the appropriate developments contemplated by para.90 will inevitably bring with them features, having impacts which will not result in their failing to preserve openness. In my judgment, however, what is required in each case is an assessment of that impact on openness in an evaluative exercise as a matter of planning judgment.

That is what happened in this case: the inspector identified the four features, the fences, the bin storage, the space for car parking and the inevitable domestic paraphernalia. They were material to his judgment on openness. As we have seen, the inspector concluded that there was an impact on openness, albeit limited. Overall, I cannot see that there was an error in his approach to the interpretation of para.90, or in his application of it. Even if the inspector did take the wrong starting point early in the decision letter that did not, in my view, make any difference to the outcome, given his conclusion on openness. That conclusion took the proposal outside the scope of the fourth bullet point in para.90. I cannot see that a different starting point would have affected the outcome.

With respect to the part of the decision letter assessing whether the development conflicted with the purposes of the Green Belt, again I cannot see that the inspector was in error. No authority was cited for the proposition that "urban sprawl" mentioned in para.80 of the NPPF is confined to urban sprawl through building. Consequently, the point addressed by the inspector - which had formed part of the reasons for refusal by the council - was a relevant consideration. It cannot be said that the inspector's approach to it was irrational or otherwise wrong.

In the alternative, Mr Turney contended that the inspector should have engaged in a comparative assessment, taking as the baseline the existing use and activities at the site. As regards visual impacts, he should have compared the visual impact of the proposal with the visual impact of the existing industrial use. That existing use involved an extensive area of hard standing around buildings and the parking and the storage of a significant number of vehicles. Both the hard standing and the vehicles would be removed as a result of the appropriate development. If the inspector had made the comparison it was likely that he would have concluded that the proposal did not result in any materially greater impact.

The fact is that the inspector did consider the impact of the existing hard standing at para.12, quoted earlier in the judgment. He concluded that it did not currently affect the openness of the Green Belt so that no benefit would arise with its removal. Because its presence did not bring about harm, removing it would not bring about benefits. That analysis cannot be said to be irrational. Admittedly, the inspector did not address the impact of the removal of vehicles, but that issue was not raised before him. In my view it is too late to raise it now.

I refuse the application.